R.R. Misra, J. - (1.) THE brief facts of the case are that one Sri Lalloo Prasad Misra had died on October 6, 1961, leaving behind his widow, Smt. Sumitra Devi, as his only heir. He had no issues. He had a brother, Sri Sheo Rattan Lal. After the death of Sri Lalloo Prasad Misra, Sri Sheo Rattan Lal Misra had filed an account of the estate on May 26, 1968, and on the basis of the same, an assessment was made under Section 58(4) of the Estate Duty Act, 1953. That assessment was set aside by the Appellate Controller by the order dated February 5, 1973, with the direction to make a fresh assessment. Accordingly, the Assistant Controller made a fresh assessment. Now under Section 58(3) (sic) of the Act, the claim of Sheo Rattan Lal Misra was that Sri Lalloo Prasad Misra and Sheo Rattan Lal Misra were assessed in the status of a Hindu undivided family up to the assessment year 1943-44. Later on, a partition took place between the two brothers and they formed a partnership firm. It was claimed that, with effect from October 22, 1966, a reunion took place between the two brothers. Reliance was placed by Sheo Rattan Lal Misra on certain evidence for the case of reunion set up by him. This evidence was gone into by the Estate Duty Tribunal and on appreciation of evidence, the Tribunal has ultimately recorded findings to the effect that the claim of Sri Sheo Rattan Lal Misra regarding the reunion was not established. THE Tribunal held that there was no evidence to substantiate the said claim and it was rightly rejected by the authorities below. THE said finding recorded by the Estate Duty Tribunal is a finding of fact and is binding on us. No question challenging the said finding has been raised in this reference either. THErefore, we have to proceed on the basis that there was a partition between Sri Lalloo Prasad Misra and his brother, Sri Sheo Rattan Lal Misra and that no reunion between the two brothers had taken place. THEreafter, on an examination of the definition of the words " accountable person ", the Estate Duty Tribunal came to the conclusion that Sri Sheo Rattan Lal Misra was not the accountable person in respect of the said estate of Sri Lalloo Prasad Misra. THErefore, the assessment made on the basis of the return furnished by Sri Sheo Rattan Lal Misra as accountable person was bad in law. THEreafter, at the instance of the Controller of Estate Duty, the Estate Duty Tribunal has referred the following question for our opinion : " Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in holding that the assessment made was bad in law, as it was based on an account of the estate of the deceased filed by Shri Sheo Rattan Lal Misra ?" Section 2(12A) of the Estate Duty Act, 1953, defines the word " person accountable " or " accountable person". It reads as follows : " (12A) ' person accountable' or ' accountable person' means the person accountable for estate duty within the meaning of this Act, and includes every person in respect of whom any proceeding under this Act has been taken for the assessment of the principal value of the estate of the deceased."
(2.) THEREFORE, according to the definition, we have to find out as to who is the " person accountable " for estate duty within the meaning of this Act. In order to locate the same, we have to refer to Section 53(1) of the Act. It read as follows : " 53(1) where any property passes on the death of the deceased- (a) every legal representative to whom such property so passes for any beneficial interest in possession or in whom any interest in the property so passing is at any time vested, (b) every trustee, guardian, committee or other person in whom any interest in the property so passing or the management thereof is at any time vested, and (c) every person in whom any interest in the property so passing is vested in possession by alienation or other derivative title, shall be accountable for the whole of the estate duty on the property passing on the death but shall not be liable for any duty in excess of the assets of the deceased which he actually received or which, but for his own neglect or default, he might have received." Mr. Bhupeshwar Dayal, learned standing counsel appearing for the Estate Duty Controller, states that, on the death of his brother, the property passed on to Sri Sheo Rattan Lal Misra who is the accountable person. The other submission is that since Sheo Rattan Lal Misra was in charge of and was looking after the partnership business after the death of Sri Lalloo Prasad Misra, he was a " person accountable " and the return filed by him was is accordance with law and the Income-tax Appellate Tribunal was not right in law in holding that the assessment made on the basis of the return filed by Sri Sheo Rattan Lal Misra was bad in law. Having regard to the facts stated above and the provisions of lawnarrated above, we find that the said contention has got no force. Admittedly, the partition had taken place between Sri Lalloo Prasad Misra and Sheo Rattan Lal Misra much before the death of Sri Lalloo Prasad Misra and no reunion having taken place between the two ; in other words, the claim of reunion as alleged by Sri Sheo Rattan Lal Misra has not been established ; in our opinion, it cannot be said that on the death of Sri Lalloo Prasad Misra, the property passed to Sri Sheo Rattan Lal Misra. On the other hand, on the facts of this case, we find that, on the death of Sri Lalloo Prasad Misra, the property passed on to Sumitra Devi, his widow. Late Sri Lalloo Prasad Misra had no issue. It is also admitted by the Department that the proceedings against Smt. Sumitra Devi could not be taken in respect of the estate of Sri Lalloo Prasad Misra during the lifetime of Smt. Sumitra Devi, In this view of the matter, we find that the property of Sri Lalloo Prasad Misra did not pass after his death to Sri Sheo Rattan Lal Misra for the purposes of Section 53(1) of the Estate Duty Act.
(3.) THE other contention of learned standing counsel that Sri Sheo Rattan Lal Misra was managing the partnership property and, therefore, he shall be taken to be a person in the management is also not correct in view of the proviso to Sub-section (i) of Section 53 of the Act quoted above which states that nothing in this section shall render a person accountable for duty who acts merely as an agent for another person in the management of the property. No other contention was advanced on behalf of the Department. In view of what we have stated above, in our opinion, the Tribunal was right in law in holding that the assessment made in question was bad in. law and the sole question referred to us is answered in the affirmative with costs of Rs. 300 payable by the Department to the assessee.;